[Code of Federal Regulations]
[Title 37, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 37CFR383.2]

[Page 751-753]
 
              TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
        CHAPTER III--COPYRIGHT ROYALTY BOARD, LIBRARY OF CONGRESS
 
PART 383_RATES AND TERMS FOR SUBSCRIPTION TRANSMISSIONS AND THE REPRODUCTION OF EPHEMERAL RECORDINGS BY NEW SUBSCRIPTION SERVICES--Table of Contents
 
Sec. 383.2  Definitions.

    For purposes of this part, the following definitions shall apply:
    (a) Applicable Period is the period for which a particular payment 
to the designated collection and distribution organization is due.
    (b) Bundled Contracts means contracts between the Licensee and a 
Provider in which the Service is not the only content licensed by the 
Licensee to the Provider.
    (c) Copyright Owner is a sound recording copyright owner who is 
entitled to receive royalty payments under 17 U.S.C. 112(e) or 114(g).
    (d) License Period means the period commencing from the inception of 
the Licensees' Services and continuing through December 31, 2010.
    (e) Licensee is a person that has obtained statutory licenses under 
17 U.S.C. 112 and 114, and the implementing regulations, to make digital 
audio transmissions as part of a Service (as defined in paragraph (h) of 
this section), and ephemeral recordings for use in facilitating such 
transmissions.
    (f) Provider means a ``multichannel video programming distributor'' 
as that term is defined in 47 CFR 76.1000(e); notwithstanding such 
definition, for purposes of this part, a Provider shall include only a 
distributor of

[[Page 752]]

programming to televisions, such as a cable or satellite television 
provider.
    (g) Revenue. (1) ``Revenue'' means all monies and other 
considerations, paid or payable, recognizable during the Applicable 
Period as revenue by the Licensee consistent with Generally Accepted 
Accounting Principles (``GAAP'') and the Licensee's past practices, 
which is derived by the Licensee from the operation of the Service and 
shall be comprised of the following:
    (i) Revenues recognizable by Licensee from Licensee's Providers and 
directly from residential U.S. subscribers for Licensee's Service;
    (ii) Licensee's advertising revenues recognizable from the Service 
(as billed), or other monies received from sponsors of the Service if 
any, less advertising agency commissions not to exceed 15% of those fees 
incurred to a recognized advertising agency not owned or controlled by 
Licensee;
    (iii) Revenues recognizable for the provision of time on the Service 
to any third party;
    (iv) Revenues recognizable from the sale of time to Providers of 
paid programming, such as infomercials, on the Service;
    (v) Where merchandise, service, or anything of value is receivable 
by Licensee in lieu of cash consideration for the use of Licensee's 
Service, the fair market value thereof or Licensee's prevailing 
published rate, whichever is less;
    (vi) Monies or other consideration recognizable as revenue by 
Licensee from Licensee's Providers, but not including revenues 
recognizable by Licensee's Providers from others and not accounted for 
by Licensee's Providers to Licensee, for the provision of hardware for 
the Service by anyone and used in connection with the Service;
    (vii) Monies or other consideration recognizable as revenue for any 
references to or inclusion of any product or service on the Service; and
    (viii) Bad debts recovered regarding paragraphs (g)(1)(i) through 
(vii) of this section.
    (2) ``Revenue'' shall include such payments as set forth in 
paragraphs (g)(1)(i) through (viii) of this section to which Licensee is 
entitled but which are paid or payable to a parent, subsidiary, 
division, or affiliate of Licensee, in lieu of payment to Licensee but 
not including payments to Licensee's Providers for the Service. Licensee 
shall be allowed a deduction from ``Revenue'' as defined in paragraph 
(g)(1) of this section for bad debts actually written off during the 
reporting period.
    (h) A Service is a non-interactive (consistent with the definition 
of ``interactive service'' in 17 U.S.C. 114(j)(7)) audio-only 
subscription service (including accompanying information and graphics 
related to the audio) that is transmitted to residential subscribers of 
a television service through a Provider which is marketed as and is in 
fact primarily a video service where
    (1) Subscribers do not pay a separate fee for audio channels.
    (2) The audio channels are delivered by digital audio transmissions 
through a technology that is incapable of tracking the individual sound 
recordings received by any particular consumer.
    (3) However, paragraph (h)(2) of this section shall not apply to the 
Licensee's current contracts with Providers that are in effect as of the 
effective date of this part if such Providers become capable in the 
future of tracking the individual sound recordings received by any 
particular consumer, provided that the audio channels continued to be 
delivered to Subscribers by digital audio transmissions and the Licensee 
remains incapable of tracking the individual sound recordings received 
by any particular consumer.
    (i) Subscriber means every residential subscriber to the underlying 
service of the Provider who receives Licensee's Service in the United 
States for all or any part of a month; provided, however, that for any 
Licensee that is not able to track the number of subscribers on a per-
day basis, ``Subscribers'' shall be calculated based on the average of 
the number of subscribers on the last day of the preceding month and the 
last day of the applicable month, unless the Service is paid by the 
Provider based on end-of-month numbers, in which event ``Subscribers'' 
shall be counted based on end-of-month data.

[[Page 753]]

    (j) Stand-Alone Contracts means contracts between the Licensee and a 
Provider in which the only content licensed to the Provider is the 
Service.